Setting record straight in AIDS case

This Just In...

September 24, 1997|By DAN RODRICKS

I heard Don Miller's name yesterday for the first time in several years and, not surprisingly, it came up in a conversation about AIDS and funeral homes.

Once upon a time, Don Miller was a true champion of the underdog in Baltimore, a warrior against racial discrimination, a crusader for gay rights and a victim of AIDS who worked hard to help others afflicted with the disease before he died. In 1985, three years before his death, Miller made national headlines with "the funeral home survey."

I bring it up because it's key background to the rest of today's story, which aims to set a record straight.

Background: When Don Miller, who was diagnosed with AIDS in 1983, made inquiries about his funeral, he discovered that some funeral establishments refused to accept the body of an AIDS victim. That gave him the idea for "the funeral home survey." He checked 98 of them in the Baltimore area and found that more than half would impose restrictions - no viewing of the deceased, services with only an empty casket - or would refuse to handle a body infected with the human immunodeficiency virus. He filed discrimination complaints with the Maryland Human Relations Commission against 56 funeral homes.

Miller became a thorn in the side of the usually obscure state Board of Morticians, forcing it to state a policy on the issue.

By 1989, Maryland laws had been changed to reflect the impact of AIDS. New language in the Maryland Health Occupation Article gave the Board of Morticians the power to sanction any licensed funeral establishment that refused to handle AIDS victims. The phrase "discriminates against" was in there, but no one knew exactly what it meant. It might have meant that a funeral home could not charge extra for handling the bodies of AIDS victims, but that wasn't clear.

And there's the point that gets us to today's story, a follow-up to earlier columns - in 1993 and 1994 - about a discrimination charge against Lassahn Funeral Home in Kingsville, Baltimore County.

More background: In 1990, Frederick Petrich, a well-known voice instructor, went to Lassahn to make

funeral arrangements for a friend dying of AIDS. Lassahn's estimate included a $450 fee for "special handling for infectious disease." Petrich did not sign the contract and took his business elsewhere.

Later, encouraged by nurses at a Baltimore hospital, he filed a complaint against Lassahn with the state Board of Morticians.

After dragging its feet for more than three years, the board finally ruled in the matter and came down on the funeral home. In June 1994, the board said Lassahn's $450 "special handling" fee constituted an act of discrimination. It placed the funeral home on probation for a year and ordered one of the owners, Ronald C. Lassahn, to work 40 hours as a volunteer for an AIDS-related service organization.

All of this was reported in earlier columns. What I did not learn until this month was that the Lassahn family fought back.

And won.

Represented by Paul Weber, an Annapolis attorney, Lassahn proved that its "special handling" fee could not have been an act of discrimination because, in 1990, there was no clear prohibition against such a fee. Though Maryland laws regarding funeral home practices and AIDS victims had been changing since the days of Don Miller's crusade, the board never clarified what sort of actions constituted discrimination.

It wasn't until 1992, nearly two years after the death of Frederick Petrich's friend, that it became clear. That was the year Maryland law was amended to reflect the Centers for Disease Control and Prevention's guidelines on "universal precautions" for medical professionals and morticians. The essential instruction was: Handle all bodies as if they have infectious disease, take the same precautions for all, and there's no need for "special handling."

Had the operators of Lassahn Funeral Home attempted to tack on extra charges for handling AIDS victims after July 1992, the board might have had a case against them. But in 1990, there still was no industry standard prohibiting the charging of "special handling" fees. So argued Lassahn's attorney.

In addition, Weber claimed that the Morticians Board knew all along that Lassahn charged the "special handling" fees for AIDS cases because the funeral home provided price lists, as required, between 1988 and 1992. "At no time [during that period]," said Weber, "did the board notify the Lassahns that the special handling charge was in any way improper or discriminatory."

So in 1995, Judge John Fader declared the board's action "illegal" and cleared Lassahn of wrongdoing in Baltimore County Circuit Court.

After that, the funeral home filed a claim against the board demanding that it pay its legal fees. After a long stall, the board denied Lassahn's demand for dollars.

That's where Judge Dana Levitz came in. This past summer in Baltimore County Circuit Court, he found that the board acted "without substantial justification and in bad faith" when it sanctioned Lassahn in 1994. And he ordered the board to reimburse the funeral home $10,000.

Since the late Donald Miller's crusade, laws have been changed and we've heard little about discriminatory practices in AIDS cases. That's why the Lassahn case stood out. But the finding of fault in that case turned out to be legally incorrect - overzealous maybe, just sloppy perhaps - and I report it here to set the record straight.